dissenting:
[His honor first stated the facts very minutely, but as they are sufficiently stated in the foregoing opinion of Chief Justice Baker, it seems unnecessary to duplicate that statement. With this exception, the following is Mr. Justice Watts’ opinion in full:]
The third instruction asked for by the defendant and refused by the court, and the fourth instruction asked-for by the defendant and given by the court, were immaterial to the isue then on trial, and the giving or refusing of them could not affect this case. The issue was whether Leitens-dorfer and Houghton had fraudulently disposed of their property and effects so as to defraud, hinder, or delay their creditors; whether the assignees had or had not discharged their duty in making payments under the deed, could not be material to that issue. It is a well-settled principle of law that a fact alleged in a bill in chancery, and not denied in the answer, must be taken to be true: Conwell v. Claypool, 8 Blackf. 121. It is an equally well-establisbed rule of pleading tliat every pleading is taken to confess such traversable matters alleged on tlie other side as it does not traverse: Steph. Pl. 216, 217.
From these authorities it seems clear that the pleadings must be regarded as having admitted and confessed the indebtedness set forth in the affidavit of Webb, in not denying it in the answer put in by the defendants to that affidavit, and hence it was unnecessary to prove a fact which was thus admitted by the pleadings to be true. Under this view of the case, the court below committed no error in refusing to give the third instruction asked for by the defendants.
The substance of the instructions given by the court below is about this: The deed of assignment made byLeitens-dorfer to Smith and Biggs is fraudulent in law for the following causes: 1. Because of the preference given to some creditors by the deed; 2. Because of the want of a schedule thereunto annexed by the assignees of the property and effects conveyed to them by the defendants; 3. Because of the want of a schedule thereto annexed of the preferred creditors, and that the execution of this deed of assignment, fraudulent in law for the causes above mentioned, sustained the affidavit in attachment, wdthout the existence of any fraud in fact or intent to, defraud. If these instructions are in conformity with law, the verdict of the jury in the first issue was correct; if they are not in accordance with law, the court gave erroneous instructions to the jury, and the motion for a new trial should have been sustained by the court, and the overruling of the motion for a new trial was error. The subject of preference in a deed of assignment of one creditor over another, and its effects upon the validity of the deed, has been often adjudicated upon in almost every state of the union, and some contradictory decisions may have been given, some of the apparent contradictions of which are easily explained. It seems to be clearly established that in the absence of any statutory prohibition and of a bankrupt law, a debtor may, at any time before liens have attached upon his property, make a general or partial assignment to a trustee for the benefit of his creditors with preference, which assignment will be valid in law against the process of creditors from the time of the execution of the deed. The following authorities will be found to support this position: Brashear v. West et al., 7 Pet. 609-614; Lippincolt v. Barker, 2 Binn. 174-186 [S. C., 4 Am. Dec. 438]; Wilkes and Fontaine v. Ferris, 5 Johns. 335 [S. C., 4 Am. Dec. 364]; De Forest v. Bacon, 2 Conn. 633, 637; McCullough et al. v. Sommerville, 8 Leigh, 416-426; Niolon v. Douglas et al., 2 Hill Ch. 443, 446; Smith, Wright & Co. v. C. C. Campbell & Co., Rice, 353-366; Moore v. Collins, 3 Dev. 126-134; Pearson and Anderson v. Rockhill & Co., 4 B. Mon. 296, 297; Cross. v. Bryant et al., 2 Scam. 37-43; Grover v. Wakeman, 11 Wend. 200-203 [S. C., 25 Am. Dec. 624]; Hempstead v. Starr, 3 Day, 340.
In this territory, there being in force no statutory prohibition against assignments giving preference to one creditor over another, and no bankruptlaw, the above authorities are in point and seem to be sufficient to establish the doctrine that a deed of assignment is not fraudulent in law because it prefers one creditor to another. It is perfectly competent for the legislative assembly, if it chooses to do so, to pass an act prohibiting assignments with preference to creditors, but until such a law is passed the general doctrine must govern this case. The decisions which appear to conflict with the above-cited authorities upon the subject of preferences, are, for the most part, made under the authority of statutes of the different states which prohibit the making of assignments with preferences to creditors. Notwithstanding preferences in general assignments are good, as established by many decided cases, yet such preferences have been prohibited by the laws of several states, as follows: In New Jersey, by Act of April 1, 1836, Bers. Laws, 674; in Maine, February 23, 1820, 3 Laws, Me. 550; in New Hampshire, July 5, 1834; in Connecticut, 1828, 3 Laws, 182; in Massachusetts 1836, c. 238. In Ohio, by act of 1835 and 1838, all assignments with preferences inure to the benefit of all the creditors of the assignor; and in Pennsylvania, by act of seventeenth April, 1843, all assignments with preferences, except for payment of wages of labor to the extent of fifty dollars, inure to the benefit of all the creditors. The doctrine of preference in all those states in which the principle of preference has not been proscribed by the statute is now viewed with strong disfavor by the courts, and the determination seems to be universal not to countenance it further than adjudged cases require: See Boardman v. Halliday, 10 Paige, 224-229; Cram v. Mitchell, 1 Sandf. Ch. 251-253.
So* far as the abstract right of the debtor to prefer his creditors is concerned, the view which is now generally adopted seems to be this, that inasmuch as the claims of creditors may be meritorious in unequal degrees, and inasmuch as particular creditors have it in their power to attain a priority by legal proceedings, the preference of creditors is an allowed object or result of a debtor’s assignment, but that it is not permitted to be used as a means of accomplishing ends which are not the legitimate object of a debtor’s efforts. These authorities seem to be clear and conclusive in establishing the fact that the deed of assignment now under consideration is not fraudulent in law because of the preference given to some creditors.
Is this deed fraudulent in law because of the want of a schedule thereto annexed by the assignees of the property and effects conveyed to them by the defendants ? The court below instructed the jury that it was fraudulent in law for the want of this schedule. This point has been decided in several of the states of the union. In New Hampshire it has been decided that a schedule containing a detailed specification of the property transferred is not necessary in general to the validity of an assignment for the benefit of creditors: Rundlett v. Dole, 10 N. H. 458.
In Connecticut a similar decision was made: Clark v. Mix, 15 Conn. 152. In Virginia a similar decision was made: Kevan v. Branch, 1 Gratt. 274. In Massachusetts a similar decision was made in the case of Woodward v. Marshall, 22 Pick. 468. In Pennsylvania a similar decision was made in the case of Wilt v. Franklin, 1 Binn. 502 [S. C., 2 Am. Dec. 474]. In Missouri a similar decision was made in the case of Duvall v. Raisin, 7 Mo. 449. In this Missouri case a list of assets and. liabilities was referred to in the deed as a part thereof, but iu fact was not made out by the debtor and made a part of the deed of assignment; and the court decided that the neglect of the debtor to make out a list of assets and liabilities, referred to in the deed as part thereof, would not render the deed of assigument inoperative. If the neglect of the debtor himself to make out schedule of his assets and liabilities would not render the deed fraudulent in law, much less likely would it be, that the neglect of the assignees to make out a schedule would render the deed of assignment fraudulent in law, for the want of such a schedule. The want of such a schedule has many times been held to be, primafacie, a presumption of fraud: See Stevens v. Bell, 6 Mass. 339; Pearpoint v. Graham, 4 Wash. C. C. 232; Wilt v. Franklin, 1 Binn. 523 [S. C., 2 Am. Dec. 474]; Burd v. Smith, 4 Dall. 76; Hower v. Geesaman, 17 Serg. & R. 251; Halsey v. Whitney, 4 Mason, 206; Haven v. Richardson, 5 N. H. 113; Cunningham v. Freeborn, 11 Wend. 241. In this last case in 11 Wend. 241, the court says the fact that the assignment is unaccompanied with any schedule of the property assigned, or a list of the creditors to be paid, is not such evidence of fraud as will justify a court of equity in pronouncing the assignment void where the case is submitted on bill and answer, in the latter of which the fraudulent intent is denied.
The fraud in the case now under consideration is alleged in an affidavit in attachment and, is denied in the answer of the defendants to that affidavit, which renders the above case one peculiarly in point. In the case above cited of Stevens v. Bell, 6 Mass. 339, the court decided that where a schedule was to be made out as soon as might be, and also an account of the debts and liabilities, which were to be arbitrated in case of dispute, the presumption of fraud was held to be removed. In the case above cited of Pearpoint v. Graham, 4 Wash. C. C. 232, the court decided that if possession of the property assigned accompany the transfer, and the transaction be in all other respects fair, the mere want of a schedule will not render it fraudulent. This opinion is also sustained by the case of Deaver v. Savage, 3 Mo. 252 [S. C., 25 Am. Dec. 437], and also by the case of Robinson v. Rapelye, 2 Stew. 86. In the above-cited case, Will v. Franklin, 1 Binn. 523 [S. C., 2 Am. Dec. 474], the court say that “ the want of a schedule is less suspicious when the whole of the assignee’s property is conveyed for the benefit of all the creditors, than where part of it is conveyed for the benefit of particular creditors.” In the case of Emerson v. Knower, 8 Pick. 63, it was decided that an assignment containing a release of the demands of creditors executing it, and providing that a schedule of the debtor’s property shall be annexed as soon as may be, is valid though no such schedule is annexed, the annexing it not’ being a condition precedent. The authority of this case is supported by the case of Keyes v. Brush, 2 Paige, 311, in which case it was further held by the court that “if the assignor neglects to furnish such schedule, the assignee may file a bill of discovery against him, and also to obtain a delivery of the books.” From these authorities it seems that the deed of assignment in this case is not fraudulent in law for the want of schedules of assets and liabilities. It is true that in the case of Drakeley v. Deforest, 3 Conn. 272, the court decided that a deed of assignment of goods, not identifying them, and referring only to a non-existing schedule for a description of them, was invalid as an instrument of conveyance; but in the same case it was also held that such a deed was effectual as a declaration of trust, and the reception of the goods by the assignee, being an assumption of that trust, constituted a sufficient consideration for the assignment. In addition to this authority upon the necessity of a schedule, the counsel for the appellee has cited to the court the cases of The United States v. The Bank of the United States, 8 Rob. (La.) 305; Naylor and Sanderson v. Fosdick, 4 Day, 146 [S. C., 4 Am. Dec. 187]; Burd v. Smith, 4 Dall. 76. In the case of The United States v. The Bank of the United States, the court does not say that the want of a schedule renders the deed void or fraudulent inl^gM[ the court only said that the absence of any schedule^^^H property assigned is evidence of fraud. In the saj^^^^l the court decided that, • considered per se, the absence of the schedules, though an indicium' oí fraud, would not be conclusive, and if the presumption were repelled by everything apparent on the deed, and everything proved aliunde, the deed would be sustained. To say that inconclusive indicia of fraud constitute a fraud in law, is drawing certain conclusions from uncertain premises, which is just as inadmissible in law as in logic.
In the case óf Burd v. Smith, 4 Dali. 76, many other elements besides the absence of an annexed schedule entered into the decision; two judges dissented, and the judges of Pennsylvania afterwards said that the main point decided in that case w'as that the assignment was void because the shares of those who did not express their assent vrere to be paid over to a notoriously insolvent debtor, and that there wras not time for all the creditors to have notice of the assignment and express their assent within the limited time: 1 Binn. 515, 528 [Wilt v. Franklin, 2 Am. Dec. 474]. In the case of Thomas v. Jenks, 5 Rawle, 225, Gibson, C. J., in commenting on the above case of Burd v. Smith, 4 Dall. 76, says: “Indeed the reasons of the judges are so indistinctly set forth in that case, the discrepancy of their views is so remarkable, as to render it of little value as a precedent.” The only remaining case of any authority in which the absence of a schedule was held to invalidate the deed of assignment is the above cited case of Drakeley et al. v. Deforest et al., 3 Conn. 272. This case vras reviewed in the case of Clark v. Mix, 15 Id. 176, and the court there said: “It is further objected that the assignment is invalid, as it referred to an instrument not then existing, and reliance is placed on the case of Drakeley et al. v. Deforest et al., 3 Conn. 272. In that case there was no specification or description at all of the property, but a reference to a schedule not then made, and the court held that all depended upou the schedule. But this is an assignment of all the property of the firm in this state, excepting ¿•^¡ehold furniture, a schedule of which is to be made and thereto as soon as may be. The assignment then ^^^^^[ete; but for the grehter facility in finding the goods, the schedule is to be made. In Emerson et al. v. Knower, 8 Pick. 63-65, there was an assignment of a quantity of leather and stock for the manufacture of boots and shoes, and of boots and shoes already made or partly made, in the hands of certain persons, with a proviso that' a schedule of the property should be -made and annexed as soon as may be; and the supreme court of Massachusetts held that the conveyance was good; that the annexation of a schedule was not a condition on which the validity of the assignment depended, and that the covenant was not essential, the property and the place where it was to be found being mentioned; and it is said that the words ‘as soon as may be’ prove that it was not considered by the parties as affecting the validity of the assignment. A similar decision was made in New York in the case of Keyes v. Brush, 2 Paige, 311, and we concur in the views taken by the court in these cases.”
So far as the want of a schedule is concerned, this case of Clark v. Mix, 15 Conn. 176, overrules the case of Drakeley et al. v. Deforest et al., 3 Id. 272; for the supreme court of Massachusetts in the case of Emerson et al. v. Knower, 8 Pick. 63-65, says that the covenant in the deed of assignment as to the schedule, was not essential; and Chief Justice Williams, in the above case of Clark v. Mix, 15 Conn. 176, says he concurs in the view taken by the supreme court of Massachusetts, in the. case of Emerson et al. v. Knower, 8 Pick. 63-65. It would thus seem that the position that the deed of assignment now under consideration is fraudulent in law for the want of schedules of assets and liabilities is without authority to sustain it, except the case of Burd v. Smith, 4 Dall. 76, which, it has already been seen, “is of little value as a precedent; ” and authorities are numerous which assert that a deed of assignment is not fraudulent in law for the want of such schedules. The court below, in this case, further instructed the jury, that the deed of assignment was fraudulent in law because of the want of a schedule thereto annexed of the preferred creditors, and because of the preference given to some creditors by said deed. The only way by which a preference can be giren is by naming the preferred creditors, specifying tlie amount. due them, and directing them to be first paid, or by referring to them as a class in such definite terms as clearly to indicate to the assignees who are to beso preferred. Now, if this deed of assignment does indicate in the above manner who are preferred, then the deed itself is a sufficient schedule of the preferred creditors, and no other was necessary. If the deed does not so indicate who are the preferred creditors, then no preference is given by the deed, and it must be considered as a general assignment for the benefit of all the creditors, pro rata. To say that this deed is fraudulent in law because of the preference given, and because there is no list of the preferred creditors, is equivalent to saying that the deed is fraudulent in law because it prefers creditors, and because it does not prefer them; two propositions which can not very well be predicated of the same instrument. If the assignor, in describing his preferred creditors, indicate some with 'certainty, and others so indefinitely that they could not'come in under the deed as preferred creditors, because of this uncertainty, it still forms no valid objection to the deed ; fdr where rights are multifarious, the uncertainty of one man’s right can not defeat the certain right of another. Now, it is certain, without any annexed schedule, that a debit of nineteen thousand and ninety-four dollars and twelve cents to Lewis and Courtney, one thousand seven hundred and forty-five dollars and fifty cents to Moodie and Simpson, four .hundred and sixty-two dollars and thirty-three cents to A. Laraux, and one thousand four hundred and fifty dollars to Henry O’Neil, is preferred ; and if this deed of assignment is in other respects valid, their rights under the deed can not be defeated, because it may be uncertain whether the simple depositors or lenders of money without interest are entitled to preference or not.
In the case of Da Costa v. Guien, 7 Serg. & R. 462, the assignment was made for the payment (among others) of all accommodation notes subscribed or indorsed for the assignors, so as to exonerate the makers or indorsers of said notes from their liability therefor. It was held, that a bill drawn on tbe assignees for their accommodation, in favor of and indorsed by the drawer, and accepted and negotiated by the assignees, was within the preference given by the clause. This clause, thus held good in the above cause, is quite as indefinite as any clause in the deed of assignment now before the court. A preference may be created for a class of debts without naming the holders of these debts, and this preference will inure to the benefit of all who hold claims properly belonging to the preferred class of debts; and whether the debt of A. B. or C. D. does or does not fall within the list of the preference class seems to be susceptible of proof dehors the deed. In this deed of assignment there is a covenant on the part of Smith and Biggs for the making of proper schedules in ten days, and annexing them to the deed. What is the object of these schedules? The object is: 1. To let the assignees know what assets have been transferred to them, and on whom; 2. To let the assignees know what debts they have to pay, and to whom; and these objects are justas well effected with proper schedules in the hands of the assignees unattached to the deed, as if they were fastened to it with hooks of steel. The assignees are agents and trustees of the creditors, and all books, papers, and schedules in the hands of said assignees, whether attached or unattached to the deed, are open to the examination or inspection of any creditor who may wish to examine them; and it can not well be perceived how a creditor could obtain any more information from reading a schedule attached to the deed, than from reading the same schedule unattached to the deed. In this case, possession of the property assigned was given immediately, and all the property of the assignor is devoted absolutely to the benefit of his creditors, without any reservation or stipulations for his own advantage.
In the case of Grover v. Wakeman, 11 Wend. 200 [S. C., 25 Am. Dec. 624], Mr. Justice Sutherland decided, that, where the assignor parts with all control of the property, and devotes it absolutely to the benefit of the creditors without any reservation or stipulation for his own advantage, the honesty of his intention is so apparent, and the advantage to the creditors so direct and decisive, that they can not be said to be obstructed or delayed in their remedies. Outside of the instructions of the court in this case, it is contended by the counsel of the appellee that this deed is fraudulent in law for the want of assent on the part of the creditors, or at least, of the preferred creditors. It is undoubtedly the law, that when a conveyance is made directly to creditors, in consideration of indebtedness, their assent, actual or to be presumed, is necessary. The point was expressly decided in the case of Tompkins v. Wheeler, 16 Pet. 106-119. But where a conveyance is to a trustee for their benefit, their assent, where there is nothing fraudulent in the deed, is not necessary, as appears from the following cases: Nicoll v. Mumford, 4 Johns. Ch. 523-529; Cunningham v. Freeborn, 11 Wend. 241, 249; Halsey et al. v. Whitney et al., 4 Mason, 207-214; Houston v. Nowland, 7 Gill and J. 480, 492; Bank of the United States et al. v. Huth, 4 B. Mon. 423-437. In Massachusetts, the assent of a creditor, to render an assignment valid as against him, is necessary, as appears from the following cases: Russell v. Woodward, 10 Pick. 408; Stevens et al. v. Bell, 6 Mass. 339, 342; Widgery et al. v. Haskell, 5 Mass. 144, 154 [S. C., 4 Am. Dec. 41]. But from an examination of these cases in Massachusetts, it will be found that the decisions are grounded upon the difficulty formerly felt respecting the power of the courts in that state to compel the trustee to execute the trust; and since the passage of the act of 1836, c. 238, which gives the creditors a remedy against the trustee, the assent of creditors is no longer necessary, even in Massachusetts, as appears from the decision of the court in the case of Shattuck v. Freeman, 1 Metc. 10. The court, in the case now under consideration, instructed the jury, “that if the jury found that the defendants, or either of them-, had fraudulently disposed of their property and effects, so as to hinder, delay, or defraud their creditors, at the time of the commencement of this suit, they must find for the plaintiff.” This position, in the broad language here laid down, is at least doubtful authority in the present case. The affidavit asserts that Leit-ensdorfer and Houghton had made a fraúdulent disposition of their property and effects, so as to defraud, hinder, and delay their creditors. The answer denies this allegation, and it would seem to be, under that issue, incumbent upon Webb to prove that both Leitensdorfer and Houghton had made this fraudulent disposition of property.
If the affidavit in this case had said that Leitensdorfer and Houghton had concealed themselves, or absconded or absented themselves from their usual place of abode in this territory, so that the ordinary process of law could not be served upon them, would it have been sufficient to sustain such affidavit to prove that Leitensdorfer alone had so absconded, while Houghton remained at Santa Fe, unconcealed, and at his usual place of residence ?
The proof in such a case would not sustain the allegation set out in the affidavit. That one partner should be held liable for the fraud of another, unless he was privy to it or connived at it, or by his affirmance made it his own, is a doctrine not founded in reason, justice, or law. The fraud of one partner, which entitles a creditor to his attachment, is no more the fraud of another partner than the larceny or murder of one partner is the larceny or murder of the firm. If the civil law is to be applied to and govern this case, by the civil law one partner is not liable for the frauds of the other. By that law injuries arising from the fault of any particular partner are chargeable entirely to him: See 1 Land Laws in California, Oregon, Texas, etc., 207. This position is fully sustained by the decision of the court in the case of Pierce v. Jackson, 6 Mass. 245, in which they say that a tort, or even a fraud, committed by one of the partners, will not bind the partnership, if it be not in a matter of contract, and there be no participation in it. The authority of this case is fully sustained by the case of Sherwood v. Marwick,, 5 Greenl. 295. That a fraud committed by one partner in a matter of contract, or in the usual course of business, does bind the firm, is too well settled to need the citation of authorities to support it. But a fraud rendering one partner liable is not within the rule. In the Matter of Peter S. Smith, an absconding debtor, 16 Johns. 102, 109, the court says: “We have considered an attachment under the act for relief against absent or absconding debtors, as analogous to an execution; and in the Matter of Chipman, 14 Id. 217, we decided that it might issue where one or several partners had absconded for a partnership debt; but the sheriff can take the separate property only of the absconding debtor; he can not seize the partnership effects, for the other partner has a right to retain and dispose pf them for the payment of the partnership debts.” In this case the deed is under seal, and runs in the name of Leiteusdorfer alone, is signed by him alone, and he describes himself as of the firm of E. Leitensdorfer & Co.
Now, whether an acting partner has authority in law, in the absence of the other member of the firm, to execute a general deed of assignment of all the partnership personal property to trustees, for the payment of the debts of the firm, though without the knowledge or consent of the other partner, is a question upon which the authorities are not uniform. The following authorities affirm such power: 3 Kent Com. 20-25; 3 Mo. 252; Hodges v. Harris, 6 Pick. 361; Gow on Part. 195; Anderson and Wilkins v. Tompkins et al., 1 Brock. 456; Harrison v. Sterry, 5 Cranch, 289, 300; McCullough v. Sommerville, 8 Leigh, 416, 431; Robinson & Co. v. Crowder, Clough & Co., 4 McCord, 519, 537 [S. C., 17 Am. Dec. 762]; White v. Union Insurance Co., 1 Nott & McC. 557, 560 [S. C., 9 Am. Dec. 726]; Hennessy v. The Western Bank, 6 Watts & S. 301, 311. The following authorities deny such power: Dickinson v. Legare et al., 1 Desau. 537, 540; Pearpoint and Lord v. Graham, 4 Wash. C. C. 232; Hughes v. Ellison, 5 Mo. 463, 466; Drake v. Rogers and Shrewsburry, 6 Mo. 317, 320. In New York it is held, that one partner may assign the partnership effects directly to creditors in discharge of their debts, but can not, without the consent of the other, make a general assignment to a trustee for the benefit of creditors with preferences: Havens v. Hussey, 5 Paige, 30; Hitchcock et al. v. St. John et al., Hoffm. 512, 517. The weight of authority seems to be in favor of the existence of the power. The deed of assignment in this case is under seal: See Harrison v. Jackson, 7 T. R. 207; Clement v. Brush, 3 Johns. Cas. 180; Van Deusen v. Blum, 18 Pick. 229 [S. C., reported in 29 Am. Dec.]; Ex'r of Fisher v. Ex’rs of Tucker, 1 McCord. Ch. 169, 171; Posy v. Bullitt, 1 Blackf. 99; Trimble v. Coons, 2 Marsh. (Ky.) 375 [S. C., 12 Am. Dec. 411]; Cummins & Co. v. Cassily, 5 B. Mon. 74; Blackburn v. McCallister, Peck, 371; Nunnely v. Doherty, 1 Yerg. 26; McNaughten et al. v. Partridge et al., 11 Ohio, 223; Doe on dem. v. Tupper, 4 Smed. & M. 261. But the above general principle, that a partner can not enter into agreements under seal, has received this important qualification: that where a seal is not essential to the nature of the contract, and will not change or vary the liability, the addition of a seal will not vitiate it; and that where an act is done which one partner may do without deed, it is not less effectual if done by deed. This appears to be, settled in reference to agreements that transfer an interest; and it has been decided in cases of sales and assignments, where the property may be transferred by delivery, such a transfer so consummated by delivery is not annulled by being attested, or having the trust in which it is made described by deed; and this applies to a general assignment for the benefit of creditors, .to a mortgage of chattels, and to an assignment of a chose in action by one partner under seal: See Anderson and Wilkins v. Tompkins et al., 1 Brock. 456, and Robinson & Co. v. Crowder, Clough & Co., 4 McCord, 519-537; Deckard v. Case, 5 Watts, 22; Halsey et al. v. Whitney et al., 4 Mason, 207-231; Hennessy v. The Western Bank, 6 Watts & S. 301-311; Everit v. Strong, 5 Hill (N. Y.), 163; Tapley v. Butterfield, 1 Metc. 515; McCullough et al. v. Sommerville, 8 Leigh, 416.
Thus far this case has been viewed through the lights thrown upon it by the common law. This case of attachment originated under a statute of this territory fixing a common law mode of procedure, and the case was tried by a jury — a tiling unknown to the civil law; and the deed of assignment was introduced merely as an instrument of evi-deuce, to sustain a statutory issue of fraudulent intent or not, and is a mere instrument of evidence. Its admissibility as evidence, and tbe legal effect of tbe instrument upon its face as a matter of evidence, would seem to be more appropriately determined by the principles and rules of tbe common law. Tbe case might be different if the suit was upon tbe deed, or tbe rights of tbe parties under it were directly in issue; then, perhaps, tbe common law rules would give place to tbe civil law. To proceed with a case according to common law, so far as tbe issues are concerned, and tbe trial of these issues by a jury, and tbe examination of witnesses orally at the bar, and when written evidence happened to be introduced, to drop all tbe common law rules of procedure and commence a pilgrimage through the ancient civil law for our guidance, would seem to result in a mongrel mode of practice, unfavorable to the administration of justice either upon common law principles or civil law principles. The question will now be considered, whether, even by the civil law, this deed of assignment is void and fraudulent in law. At the time this deed was made, Leitensdorfer was the absolute owner of the property assigned, had it in his possession and under his control. It was not pledged, pawned, or mortgaged, and no creditor had obtained any lien upon it by attachment or otherwise. Under such circumstances, it was not contrary' to the civil law for him to dispose of it; for one of the first and plainest principles of the civil law is, that the absolute ownership of property confers the- right to enjoy and dispose of it as you please: See Civil Law of Spain and Mexico, J. C. Schmidt, tit. 11, art. 188, p. 45. By the civil law, fraud was treated as a crime, and was never to be presumed if there was no proof of it: Domat, vol. 1, p. 511. The rule laid down by the civil law to determine what was a fraud by a debtor upon his creditors is this: If the act of the debtor diminished the estate which he had already acquired, it was a fraud upon the creditors; if it did not diminish the estate already acquired; it was no fraud upon the creditors. Domat, in speaking of the Boman law, says, they ■ did not look upon anything as a fraud done to the prejudice of creditors except wbat was a diminution of the estate wliich tbe debtor bad already acquired: Domat, vol. 1, p. 637. How this deed, which assigns all the debtor’s property to the payment of his debts, can be considered as a diminution of the estate of the debtor, can not be perceived, unless the whole of anything is less than the sum of all its parts.
The doctrine of assignments is clearly recognized by Domat, vol. 1, p. 642. He says, the creditor who receives from his debtor that which is due to him commits no fraud, but does himself justice by taking care of his own interests, as it is lawful for him to do; and although his debtor be found insolvent, and because of said payment there does not remain enough to satisfy the other creditors, or there remains even nothing at all for them, he is not bound to restore what he has received for his own payment, but the other creditors ought to blame themselves for not having been as watchful of their own interests as he has been of his, who has got payment. Further, says Domat, if, “ after the seizure of the goods of a debtor, or after the debtor has assigned over his goods for the satisfaction of his debts to his creditors, one of them receives payment of his debt, either out of the stock of goods that have been seized, or out of what has been made over to the creditors, he shall be obliged to share with the other creditors what he has received, because in that case he takes to himself what belongs in common to all the creditors. But this is not to be understood of what one who has seized on all the movables of his debtor may have received by means of his diligence before the other creditors have entered their actions.” But it may be contended, that, admitting the right of the debtor to pay his creditors by the transfer and delivery of property, it does not follow that he could so pay or transfer his property to an attorney or trustee- of his creditors. This point seems to be settled by the civil law, which says a contract may be for the benefit of a third person not party to it, whether it has for its object to liberate him from some obligation or to acquire some right: See Civil Law of Spain and Mexico, by J. C. Schmidt, art. 432, p. 97. This deed is for the benefit of third persons, the creditors of Leitensdorfer & Co., and has for its object the liberation of Leitensdorfer & Co. from the debts as far as the property assigned will go, and also has for its object the acquisition, upon the part of the creditors, of a right to that property or its proceeds for the extinguishment of said debts as far as it will go. Domat, 695, when speaking of the several sorts of assignments, says: “And there are some assignments which are made for a valuable consideration; as if a debtor assigns a debt that is owing to him for the payment of his creditors, or if a creditor makes over to a third person, for a certain price, a debt that is due to him.” Now, if a debtor can assign one debt owing*to him to pay one creditor he owes, may he not, in accordance with the civil law, assign all the debts owing to him, and all his property to pay his creditors, in the order he directs them to be paid? The distinction would seem to be a distinction without a difference. If a debtor, in accordance with the doctrine of the civil law, could pay his debt or a part of it by giving his creditor one sheep, the inference is legitimate that he might pay his debts as far as he could by the transfer of his whole flock to his creditors, or such of them as he wished to privilege. This deed of assignment, under the civil law, may be regarded as a pledge on the part of Leitensdorfer & Co. of all .their property and effects to Smith and Biggs, with authority to sell the things pledged for the payment of debts, as directed in the said deed of assignment, which is evidence of the contract between the pledgor and pledgees; and Domat, 928, says: “In the case of discomfiture or insolvency the creditor who is in possession of a pledge, which the debtor had given him for his security, is preferred on that pledge before the other creditors.”
It is an admitted principle of the civil law, that “no one has the right of his own authority to take possession of the property of his debtors and retain it as a pledge without previous order from the judge, unless the debtor has given him this power:” Fuero Juzgo, lib. 1, tit. 6, b. 5; Fuero Beal, lib. 2, tit. 19, b. 3; Partidas, lib. 11, tit. 13, p. 5. The converse of this proposition, upon principle, .ought to be true, and the authority would then say, that any one has the right, of his own authority, to take possession of the property of his debtor, and retain it as a pledge, without previous order from the judge, if the debtor has given him this .power. It would thus seem, by the civil law, that this deed of assignment is neither void nor fraudulent in law. Had all the facts connected with this deed of assignment, tending to show either a fraudulent or honest intent, been submitted to the jury for their consideration, their verdict Avould have been a satisfactory settlement of the issue submitted to them. Such was not the case, however. The court below, on the trial of this case, in substance told the jury that the deed of assignment was fraudulent in law, and proved the plaintiff’s affidavit to be true; and they must therefore render a verdict for the plaintiff. We think the court below has taken for frauds in law circumstances only tending, prima facie, to prove fraud. An examination of the very many cases already cited in the progress of this opinion fully sustains this view. The defendants asked the court to instruct the jury, that “as the assignment was the act of Leitensdorfer alone, with which Houghton had nothing to do, the act of one defendant would not authorize an attachment against two, and the verdict must be for the defendants.” This instruction was rightly refused to be given, upon the ground that it assumed as true disputed facts, proper to be determined by the jury from the weight of the evidence.
The defendants also asked the court to instruct the jury, “that the deed of assignment was not fraudulent in law; and that unless the jury find from the evidence, that in fact, at the time of the commencement of this suit, the plaintiff had good reason to believe that the defendants had fraudulently disposed of their property and effects, so as to hinder, delay, or defraud their creditors, they must find for the defendants.”' We see no objection to this instruction, and think it ought to have been given to the jury.
Upon tbe other points of this case I fully concur in the opinion of the chief justice; but because of the above errors in the instructions of the court, and because of the refusal of the court below to give the second instruction asked for by the defendants, I think such error supervened as entitled the defendants to a new trial, and that the motion for a new trial should have been granted in the court below; and because it was hot granted, this case ought to be reversed, and sent back to the court below for further proceedings herein.